Citation Nr: 0728166
Decision Date: 09/07/07 Archive Date: 09/14/07
DOCKET NO. 03-16 470 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to service connection for a bilateral leg
disability, including peripheral vascular disease.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
ATTORNEY FOR THE BOARD
S. B. Mays, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1945 to November
1946.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2003 rating decision of the
Atlanta, Georgia Regional Office (RO) of the Department of
Veterans Affairs (VA).
The veteran requested the opportunity to present testimony in
support of his claims at a personal hearing before a Veterans
Law Judge sitting at the RO. Such a hearing was scheduled for
June 2004. The veteran was notified of the scheduled time
and place at his current address of record but failed to
appear for the hearing. When an appellant elects not to
appear at the prescheduled hearing date, the request for a
hearing will be considered to have been withdrawn. 38 C.F.R.
§ 20.704(d). His claims will thus be adjudicated without
further delay based upon all the evidence presently of
record.
In August 2004, the Board denied service connection for a
bilateral leg disability, including peripheral vascular
disease, as well as a genitourinary disability. The veteran
subsequently appealed the Board's decision denying service
connection for a bilateral leg disability, including
peripheral vascular disease, to the United States Court of
Appeals for Veterans Claims (Court). In March 2007, the
Court issued a judgment, vacating the August 2004 denial of
service connection for a bilateral leg disability, including
peripheral vascular disease, and remanded that issue for
readjudication consistent with the Court's February 2007
memorandum decision. The veteran did not challenge the
denial of service connection for a genitourinary disability,
thus the Court deemed it abandoned. The case is now before
the Board for appellate review.
REMAND
The veteran asserts that he is entitled to service connection
for a bilateral leg disability, including peripheral vascular
disease. He states that his leg problems began during basic
training and that he was advised by a doctor to continue in
basic training.
Based on a review of the February 2007 memorandum decision
and the March 2007 Court Judgment, the Board finds that
further development is necessary.
On remand, the RO should request all of the veteran's service
medical records (SMRs). The record does contain some of the
veteran's SMRs, to include reports from the veteran's
entrance and discharge examinations and some medical notes
dated between May 30, 1945 and September 12, 1945. However,
the Court indicated that the Board, in its August 2004
decision, did not discuss any efforts made to obtain all of
the veteran's SMRs, nor did it discuss whether any notice was
provided to the veteran to the effect that that VA concluded,
after reasonable efforts to obtain them, that other SMRs did
not exist. The Court noted that there is a possible records
gap of approximately one year of the veteran's active duty
since the veteran served from April 1945 to November 1946.
The Court also indicated that the Board did not provide an
explanation for rejecting a May 30, 1945 service treatment
record (difficult to read), that might read "tenosynovitis"
and "Epsom salt." Thus, on remand, the Board finds that a
VA examination is also necessary to determine the probable
etiology of the veteran's current bilateral leg disability.
Accordingly, the case is REMANDED for the following action:
1. The RO should request all of the
veteran's SMRs. If no additional SMRs
are available, a negative response should
be obtained and included in the veteran's
claims folder. The RO should then inform
the veteran that additional SMRs could
not be located.
2. Regardless of whether any additional
SMRs are obtained, the RO should schedule
the veteran for a VA examination to
determine the etiology of peripheral
vascular disease, or any other currently
diagnosed bilateral leg disability.
Prior to the examination, the examiner
should review the entire claims folder,
to include the veteran's entrance
examination report, discharge examination
report, treatment notes dated between May
30, 1945 and September 12, 1945, and any
other newly-associated SMRs.
The examiner should opine whether there
is a 50 percent probability or greater
that any currently diagnosed bilateral
leg disability, including peripheral
vascular disease, is related to the
veteran's active military service. The
examiner is asked to reconcile any
opinion with the May 30, 1945 treatment
note, which apparently reads
"tenosynovitis" and "Epsom salt," and
the negative separation examination
report.
The examiner should provide a
comprehensive report including a complete
rationale for any conclusions reached.
If further testing is deemed necessary,
such testing is to be accomplished.
3. Upon completion of the above-
requested development and any additional
development deemed appropriate, the RO
should readjudicate the issue of
entitlement to service connection for a
bilateral leg disability, including
peripheral vascular disease. All
applicable laws and regulations should be
considered. If the benefits sought on
appeal remain denied, the veteran and his
representative should be provided with a
supplemental statement of the case. An
appropriate period of time should be
allowed for response.
Thereafter, the case should be returned to the Board, if in
order. The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
_________________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).